07/27/2017

Evan Bernick on "Understanding the Fiduciary Constitution" by Lawson and SeidmanMichael Ramsey

At the Library of Law and Liberty, Evan Bernick: Getting to the Essence of the Constitution (reviewing A Great Power of Attorney”: Understanding the Fiduciary Constitution, by Gary Lawson and Guy Seidman). From the introduction:

As one might guess from the title, Lawson and Seidman find that the Constitution is a fiduciary document—a legal instrument, familiar in private law, that empowers one person (the fiduciary) to control or manage the assets or legal interests of another (the beneficiary or beneficiaries) in order to promote the latter’s interests. As private law imposes a stringent set of duties on fiduciaries to protect beneficiaries against abuses of discretion, so the Constitution imposes similar duties upon government officials who are empowered to act on behalf of “We the People.” When James Iredell described the Constitution as a “great power of attorney” at the North Carolina ratifying convention in 1788, he was offering not merely an attractive analogy but an interpretive key to the document that he hoped would become the law of the land.

The implications of Lawson and Seidman’s conclusion are profound. But let me start by summarizing their empirical evidence before tracing some of the implications their conclusion has for constitutional meaning.

Most of the book is taken up with organizing the evidence that the coauthors (together with Robert Natelson, their frequent collaborator) have been amassing for years and have set forth in numerous articles and one book focusing on the fiduciary roots of the Article I’s Necessary and Proper Clause. Lawson and Seidman begin by detailing the contours of fiduciary relationships and documents during the late 18th century. They then discuss how fiduciary principles were used by Americans to conceptualize the relationship between legitimate governments and their citizens. Then they move to the Constitution itself, specifying the ways in which its content and structure reveal its character as a fiduciary document. Lastly, they sketch how the various duties that attached to fiduciaries might be applicable to governmental actors under “this Constitution.”

And in conclusion:

Professor Randy Barnett and I have drawn upon the work of Lawson, Seidman, and Natelson to articulate a theory of good-faith constitutional construction that we plan to flesh out in a series of articles (and projected book.) As the term “good faith” suggests, our theory is informed by fiduciary theory.

We argue that constitutional actors have a duty to follow their constitutional instructions in good faith, and to forebear from exercising their discretion under the Constitution’s letter (its text, consisting in its original public meaning) to undercut its original spirit (understood as the function or functions that a hypothetical member of the public would have reasonably understood particular provisions to serve). When constitutional actors cannot arrive at a determinate answer through interpretation, we argue that they should turn to the spirit of the relevant text to construct a rule that resolves the question at hand. I do not mean to suggest that Lawson, Seidman, or Natelson would agree with our approach—only to indicate the possibility that fiduciary theory could guide construction as well as inform interpretation.

The authors of “A Great Power of Attorney” are at pains, as I said, to disclaim any intention but that of shedding some light upon the meaning of an old document. What they have done is demonstrate to the satisfaction of this reviewer that it would be careless indeed for anyone who thinks and writes seriously about the Constitution’s meaning to neglect its character as a fiduciary instrument that creates a fiduciary government. That is a great achievement in and of itself.